By a 6-3 vote, the court held that RCW 7.70.100(1) is unconstitutional because it “irreconcilably” conflicts with the commencement requirements of Civil Rule 3(a), which states that a civil action is commenced merely by service of a summons and a complaint. The majority, in an opinion authored by Justice Charles Johnson, held that adding an additional requirement in the form of a notice of intent violated the so-called separation of powers doctrine, whereby the courts maintain ultimate control over matters of court procedure. The court relied heavily upon its 2009 decision Putman v. Wenatchee Valley Medical Center, where it invalidated the certificate of merit requirement, another key aspect of the 2006 malpractice reform law, on similar grounds.

The dissent, authored by Justice James M. Johnson, who was joined by Chief Justice Madsen and Justice Fairhurst, found no conflict between the statute and the civil rule because the statute addresses what must happen before a suit is filed, while the rule prescribes what must happen when a suit is commenced. Thus, according to the dissent, this case is different than Putman because RCW 7.70.150 required a certificate of merit to be filed with a plaintiff’s complaint. Furthermore, the dissent states that Putman and Waples “eviscerate[]” the 2006 legislative package addressing healthcare liability reform such that it can “no longer properly be called a compromise,” and that “[t]his is not what the legislature, the governor, or those other ‘good faith’ parties at the negotiating table agreed to, and we would be wise to avoid such a dramatic legislative revision.”

The immediate impact of the ruling is that notice no longer must be given before instituting a medical negligence action, at least against private parties. There is a remaining issue, however, with respect to public health care providers, such as state and district hospitals. Publicly owned facilities have long had the benefit of prior notice required under the governmental notice of claim statutes. After enactment of the 2006 reform package, the legislature amended these laws, chs. 4.92 and 4.96 RCW, to specify that in lieu of giving notice under the governmental tort-claim laws, the notice procedure under RCW 7.70.100 governs medical malpractice claims against public entities. Because the court has long upheld governmental notice of claim laws against constitutional challenge, it is possible, if not likely, that the court would say that RCW 7.70.100 is valid with respect to governmental entities and persons entitled to indemnity from the government.

More broadly, as the dissenters forecast, Waples opens the door to further challenges to other statutory notice of claim requirements; e.g., in construction defect litigation where there is a forty-five day waiting period. The majority ruling is also likely to lead to challenges to a variety of other statutes governing pre-suit procedures.

If you have any questions regarding this decision, please contact Mike Madden, Liz Leedom, Bruce Megard, or Amy Magnano at 206-622-5511.